Motion in limine to keep out videos per stipulation
In most child pornography cases, the defense will not turn on whether or not the child pornography was actually child pornography. Thus, the defense can stipulate to this element of the defense to avoid having the State show the contraband files to the jury. Of course, the State will strongly resist this. They know that by showing these images to the jury, some will be so upset that it may be difficult for them to give the defendant a fair trial. When I first made this argument, there was no real case law on this topic. Luckily, there is now.
In U.S. v. Cunningham, the Third Circuit said that “unless the Court determines that, considering the potential of unfair prejudice, the probative value of a proposed video excerpt is so minimal that it need not watch that excerpt, the Court must view the proposed video excerpts to not only assess their probative value and potential for unfair prejudicial impact but also to appropriately evaluate their admissibility in light of Rule 403’s concern with redundancy”.
In Cunningham, the Court didn’t even want to watch the videos (who would want to?) but that shouldn’t be an issue with New Jersey’s May hearings. Thus, after the Court makes a ruling as to the May hearing the defense should consider then stipulating to the images that the Court found admissible. Then, the defense can argue that pursuant to U.S. v. Cunningham, that the probative value is therefore minimal and the horrific nature of the videos is incredibly prejudicial.
Following an adverse ruling on this issue, defense counsel should then ask in the alternative for the State to be limited in the amount of videos it shows the jury as well as the amount of each video is shown.